Ravi Bharti S/o Baisakhu Bharti v. State Of Chhattisgarh
2023-07-24
SACHIN SINGH RAJPUT
body2023
DigiLaw.ai
ORDER : This petition under Section 482 of the Code of Criminal Procedure, 1973 (for short CrPC) has been filed by the applicant praying for the following relief:- “It is, therefor, most humbly and respectfully prayed that this Hon’ble Court may kindly be pleased to pass an order of modification in the judgment/order dated 23.03.2023 passed in Criminal Appeal No. 984/2008 and may kindly be permitted to extend the time period for depositing the enhanced fine amount imposed upon the applicant in the interest of justice. This Hon’ble court be further pleased to pass any other order or relief in favour of the petitioner as it deems fit and proper under the facts and circumstances of the case in the interest of justice.” 2. Facts of the case in brief is that the applicant namely Ravi Bharti was convicted for an offence punishable under Section 307 read with Section 34 of Indian Penal Code, 1860 (for short IPC) and was sentenced to undergo seven years rigorous imprisonment with fine of Rs. 2000/- and in default of payment of fine three months additional rigorous imprisonment was imposed by the learned Additional Sessions Judge, Janjgir, District Janjgir-Champa, CG in S.T. No. 135/2008 vide judgment dated 06.10.2008. The applicant challenged the same before this Court in Criminal Appeal No. 984 of 2008. This Court vide its judgment dated 23.03.2023 passed the following orders:- (i) The impugned judgment and order of conviction and sentence for the offence punishable under Section 307 read with Section 34 of IPC is set aside and the appellants are convicted for the offence punishable under Section 326 read with section 34 of the IPC and sentenced to the period of sentence already undergone/served by them. (ii) The fine amount of Rs.2000/ (for each appellant) imposed by the learned trial court is enhanced to Rs.7,000/ for each appellant. Appellants are directed to pay the fine within a period of three months from today. In default of payment of fine, the appellants shall undergone rigorous imprisonment for three months. (iii) On depositing the fine, the injured/complainant (PW5) Shiv Kumar shall be paid compensation of Rs.10,000/ in view of Section 357 of CrPC after due identification. (iv) The appellants are reported to be on bail, their bail bonds shall remain in force for a further period of six months, in view of Section 437A of the CrPC. 3.
(iii) On depositing the fine, the injured/complainant (PW5) Shiv Kumar shall be paid compensation of Rs.10,000/ in view of Section 357 of CrPC after due identification. (iv) The appellants are reported to be on bail, their bail bonds shall remain in force for a further period of six months, in view of Section 437A of the CrPC. 3. While partly allowing the appeal this Court has enhanced the fine amount imposed by the trial Court from 2000/- to 7000/- for each appellants. It is further directed that to pay the fine amount within a period of three months from the date of judgment i.e. 23.03.2023 in default of payment of fine the appellants shall undergo RI for three months. The applicant could not deposit the enhanced fine amount within a period of time as provided by this Court, therefore, the petition under Section 482 of CrPC has been filed praying for sometime to deposit the same. 4. Learned counsel for the applicant submits that due to miscommunication, the judgment dated 23.03.2023 passed by this Court could not be communicated to the applicant and the applicant was not aware of the fact that the enhanced fine amount is required to be paid within the period of three months. As soon as in the month of June when he came to know about passing of the judgment, he tried to deposit the enhanced fine amount but the learned trial Court refused to accept the same because the period to deposit the same was already over, therefore, in the interest of justice, one opportunity may be granted to pay the amount within seven days. There is no deliberate fault on his part and he is still ready and willing to deposit the fine as ordered by the Hon’ble Court. He submitted that in order to do justice, the petition may be allowed. He submitted that section 482 of Cr.P.C. give ample powers to this Court and in the ends of justice the petition may be allowed. He placed reliance of an order passed by this Court in Cr.M.P. No. 933 of 2014 dated 17.10.2014 in case of Subhash Kashyap and others Vs. State of Chhattisgarh, Cr.M.P. No. 710 of 2019 dated 18.03.2018 in case of Ramkumar Sahu Vs. State of Chhattisgarh. In these cases this Court has extended the time for depositing the fine.
He placed reliance of an order passed by this Court in Cr.M.P. No. 933 of 2014 dated 17.10.2014 in case of Subhash Kashyap and others Vs. State of Chhattisgarh, Cr.M.P. No. 710 of 2019 dated 18.03.2018 in case of Ramkumar Sahu Vs. State of Chhattisgarh. In these cases this Court has extended the time for depositing the fine. Lastly he submitted that if this court does not agree with the submissions and does not extend the time for depositing the fine, some observation with regard to section 68 of IPC may be made enabling him to pay the fine after the applicant surrenders before the learned trial court. 5. Opposing the submissions, Mr. Verma, learned Government Advocate submits that after the passing of the judgment, the Court becomes functus officio, and can only correct a clerical or arithmetical error as per provision of Section 362 of CrPC, the Court cannot alter the judgment. 6. I have heard learned counsel for the parties, considered their rival submissions. 7. Admittedly, on 23.03.2023 this Court partly allow the appeal and conviction of the petitioner under Section 307 read with Section 34 IPC was set aside and he was convicted under Section 326 read with Section 34 IPC and was sentenced to period already undergone/served, however, the fine amount of Rs. 2000/- which was imposed by the learned trial Court was enhanced to Rs. 7000/- which was required to be deposited within a period of three months. 8. The issue before this Court is whether after a judgment is passed deciding the Criminal Appeal No. 984 of 2008 directing depositing of fine within a stipulated time, in exercise of power under section 482 Cr.PC, this Court can pass an order extending time to deposit the fine. 9. Section 362 and 482 of the Cr.P.C. are relevant and are quoted herein below:- “362. Court not to after judgment- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” “482.
Court not to after judgment- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” “482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 10. The provisions contained in section 362 of Cr.P.C. envisages once the Court has signed a judgment or final order disposing of a case, it cannot alter or review the same except to correct a clerical or arithmetical error. 11. The Hon’ble Supreme Court in case of State of Madhya Pradesh Vs. Man Singh reported in (2019) 10 SCC 161 has held as under:- “7. It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of CrPC. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits. After disposing of a case on merits, the Court becomes functus officio and Section 362 CrPC expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error. Recall of judgment would amount to alteration or review of judgment which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers.” (emphasis supplied) 12. In case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169 Hon’ble Supreme Court observed as under:- “10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error.
Harbhajan Singh Bajwa and others reported in (2001) 1 SCC 169 Hon’ble Supreme Court observed as under:- “10. Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. ...” (emphasis supplied) 13. Similar law has been laid down by the Hon’ble Supreme Court in cases of Sooraj Devi Vs. Pyarelal and another reported in (1981) 1 SCC 500 and Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee & another reported in (1990) 2 SCC 437 . Thus legal position is in this regard is well settled that only clerical and arithmetical errors could be corrected and court cannot review its order exercising inherent power under section 482 of CrPC. Argument advance by the learned counsel for the applicant does not hold water in light of the above authoritative pronouncement. Hence in considered view of this Court the applicant is not entitled to the relief claimed. The petition has no merit and is liable to be dismissed. 14. The argument advanced by the learned counsel for the applicant with regard to application of Section 68 of the IPC requires consideration. For ready reference Section 68 of IPC is quoted below:- “68. Imprisonment to terminate on payment of fine.- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.” In case of Abdul Gani Vs. The State of Madhya Pradesh reported in 1950 SCC OnLine MP 119 = AIR 1951 Nag 342 Hon’ble Nagpur High Court observed as under:- “6.
The State of Madhya Pradesh reported in 1950 SCC OnLine MP 119 = AIR 1951 Nag 342 Hon’ble Nagpur High Court observed as under:- “6. When a person undergoes imprisonment in default of payment of fine, it is obvious that imprisonment can come to an end in one of these three ways: efflux of time, payment of fine or remission of fine.......” 7. There is also an additional reason why we think that this petn. must fail. The imprisonment which a person is ordered to undergo for non-payment of fine is only a contingent imprisonment. By paying the fine, before the substantive term of imprisonment comes to an end, a person can well avoid undergoing the sentence in default of payment of fine........” 15. With the above observation this petition is dismissed. 16. Certified copy as per rules.